IN THE CASE OF:	

		BOARD DATE:	15 December 2009 

		DOCKET NUMBER:  AR20090010906 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the character of his discharge be upgraded.

2.  The applicant states, in effect, that he requested to be discharged from the Army because he was having emotional problems during his second enlistment.

3.  The applicant provides copies of his DD Forms 214 (Report of Separation from Active Duty) and a self-authored statement in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army (RA) on 29 February 1972 and served until he was honorably discharged on 28 February 1974.  He enlisted in the RA again on 26 April 1974.
3.  The applicant's record documents no acts of valor or service warranting special recognition.

4.  The applicant’s record contains a copy of Headquarters, 1st Brigade, 101st Airborne Division (Airmobile), Fort Campbell, KY, Special Court-Martial (SPCM) Order Number 71, dated 23 October 1974, which documents the following charges, pleas, and findings:

	a.  Charge I, Article 86, Uniform Code of Military Justice (UCMJ), on or about 17 July 1974, absenting himself from his unit without authority until on or about 13 August 1974.  The applicant entered a plea of guilty and was found guilty.

	b.  Charge II, Article 87, UCMJ, on or about 17 July 1974, missing movement through neglect.  The applicant entered a plea of guilty and was found guilty.

	c.  Charge III, Article 90, UCMJ, on or about 11 July 1974, disobeying a lawful order from a noncommissioned officer.  The applicant pled not guilty and was found not guilty on defense motion.

	d.  Charge IV, Article 91, UCMJ, on or about 12 July 1974, disobeying a lawful order from a noncommissioned officer.  The applicant pled not guilty and was found not guilty on defense motion.

5.  On 1 October 1974, the sentence was adjudged.  The applicant was sentenced to be confined for a period of 2 months, to forfeit $65.00 pay per month for 2 months, and to be reduced to private (PV1)/E-1 (no previous convictions considered).  The court-martial convening authority ordered the sentence executed.

6.  The applicant’s record contains a copy of U.S. Army Retraining Brigade, Fort Riley, Kansas, SPCM Order Number 2298, dated 12 December 1974.  This document shows, in pertinent part, that the sentence was to be remitted without further action.

7.  On 18 February 1975, the applicant accepted nonjudicial punishment for failure to go at the time prescribed to his appointed place of duty on 5 February 1975 and 18 February 1975.  His imposed punishment was reduction to the grade of PV1/E-1, forfeiture of $50.00, 14 days of restriction, and 14 days of extra duty.

8.  On 20 March 1975, a mental and a physical evaluation cleared the applicant for any administrative action deemed appropriate.

9.  The applicant’s record contains a copy of a DD Form 458 (Charge Sheet) dated 15 April 1975, which documents the following charges against the applicant:

	a.  Charge I, Article 86, UCMJ, with four specifications:

		(1)  Specification I, on or about 12 March 1975, failing to go at the time prescribed without authority to his appointed place of duty;

		(2)  Specification II, on or about 18 March 1975, failing to go at the time prescribed without authority to his appointed place of duty;

		(3)  Specification III, on or about 1 April 1975, absenting himself from his unit without authority and remaining absent until on or about 3 April 1975; and

		(4)  Specification IV, on or about 4 April 1975, absenting himself from his unit without authority and remaining absent until on or about 14 April 1975.

	b.  Charge II, Article 134, UCMJ, with two specifications:

		(1)  Specification I, on or about 22 February 1975, breaking restriction; and

		(2)  Specification II, on or about 23 February 1975, breaking restriction.

10.  The applicant’s record contains a copy of a DD Form 458 dated 5 June 1975, which documents the following charge against the applicant:  on or about 22 February 1975, breaking restriction.

11.  The applicant’s record contains a copy of a DD Form 458 dated 10 July 1975, which documents the following charge against the applicant:  on or about
 6 June 1975, absenting himself from his unit without authority and remaining absent until on or about 8 July 1975.

12.  On 10 July 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

13.  In his request for discharge, the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

14.  On 18 July 1975, the separation authority directed that the applicant be separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service and that he receive an under other than honorable conditions discharge.  On 29 July 1975, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time confirms the applicant completed a total of 2 years, 9 months, and 7 days of creditable active military service with 181 days of time lost.

15.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded was carefully reviewed and found to be without merit.

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial is presumed to have been administratively correct and in conformance with applicable regulations.   There is no indication that the request was made under coercion or duress.

3.  The applicant’s record of indiscipline includes punishments under Article 15, UCMJ; a SPCM conviction; confinement by military authorities; and 181 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge or an honorable discharge.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



		____________X____________
      		CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090010906



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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